Ordinary vs. Technical Readings of Ethics Provisions -- A Case Study

Anonymous

Mon, 10/05/2009 - 06:04

City Related

Update: December 2, 2009 (see below) 
 
I have often complained about how local government officials and
attorneys approach government ethics matters in an overly
technical manner. Well, ethics commission attorneys can do this, too. 
 
In terms of the language in ethics codes, I think the rule should be,
If an ordinary person does not read language a certain way, an ethics
commission should not read it that way. If the ethics commission feels
certain language should be read a different way, it should recommend that the
language of the provision be changed or that a comment be inserted
giving clear examples of situations to which the language applies. Even
precedents are insufficient, because few local government employees or
officials will be aware of them, as helpful as they may be to ethics counselors.

Here is an example of what I feel is a reading of an ethics code by an
EC attorney that differs from how an ordinary person would read it. It
appears in a recent <a href="http://media.townonline.com/pdf/MILsewer.pdf" target="”_blank”">order to show cause</a>,
following a probable cause determination made by the Massachusetts
ethics commission, dealing with a local government official (the order
to show cause is also attached below). 
 
First, the basic facts. An elected sewer commission member is an
excavater and drainlayer. On seventeen occasions over three years he
laid drains from homes to the public sewer system for people in his
town. These connections were done pursuant to sewer department permits
and supervision. It appears that the sewer commission member was
compensated an ordinary amount for such work. 
 
Here is the law section of the order to show cause:
<ul>12. As a Milford Board of Sewer
Commissioners member, Lanzetta was at all times relevant to this matter
a municipal employee as defined in G.L. c. 268A, § l(g).
[Definition: a person performing
services for or holding an office, position, employment or membership
in a municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation, on a
full, regular, part-time, intermittent, or consultant basis] 
 
13. Section 17(a) prohibits a municipal employee, other than as
provided by law for the proper discharge of his official duties, from
requesting or receiving compensation from anyone other than the same
municipality in relation to a particular matter in which that
municipality is a party or has a direct and substantial interest. 
 
14. The applications for the sewer connection permits, the decisions to
issue the connection permits, the permits themselves, and the decisions
to approve the work performed pursuant to the permits were "particular
matters." 
 
15. The town of Milford had a "direct and substantial interest" in
those particular matters. 
 
16. The compensation Lanzetta received for performing the sewer
connections on the above-listed projects was "in relation to those
particular matters." 
 
17. Lanzetta's receipt of compensation for the sewer connections he
performed on the above-listed projects was not "provided by law for the
proper discharge of his official duties." 
 
18. Therefore, Lanzetta repeatedly violated § 17(a).
</ul>
 
Both Sides of the Equation 
Looking at the relevant <a href="http://www.mass.gov/?pageID=ethsubtopic&L=4&L0=Home&L1=Opinions+and+Rul…; target="”_blank”">decisions and disposition agreements</a> of the
Massachusetts ethics commission, it becomes clear that §17(a) is
primarily intended to prevent town employees from using their position
to get other paid town work and to prevent town officials from
representing people before their board or other boards. 
 
Its partner section, §17(b), prohibits anyone from so compensating
a town employee (I think this is a good idea to make both sides of such
transactions responsible). This implies that people giving such
compensation will be hiring the person because the person works for the
town and, therefore, that they will know they're doing something wrong
(I would add to the provision that they should have at least reason to
believe the person they're compensating is a town employee). This
provision clearly does not apply to homeowners paying someone to
connect their sewers, who even if they knew they were hiring a sewer
commission member, would not know there was anything wrong about it. I
doubt that the ethics commission will be bringing proceedings against
the homeowners, as they have against others on the other side of the equation in §17(a) cases. 
 
Technical Issues 
There are two problems here. First of all, the town does not connect
sewers nor does it determine or recommend who connects the sewers. Any
licensed drainlayer may do this work. Therefore, although the sewer commission does
give permits to homeowners (the sewer commissioner recused himself on the permit approvals, thereby disclosing his involvement to the sewer commission) and the sewer department approves the work done, the town does not have what ordinary people would consider a
"direct or substantial interest" in the actual connection work. 
 
Nor does this work have anything to do with the sewer commissioner's
"official duties." 
 
What Is Contemplated by the Law 
But these are technical arguments, too. More important, this is not the
sort of situation contemplated by this law. It appears to stretch the
law in much the same way that an attorney will find loopholes in a law
(or it could also be said that the language is itself too broad and
should not be interpreted beyond what is reasonable under the
circumstances). 
 
There is no doubt that commission members should not be representing
people before their commissions or doing work that needs to be approved
by their commissions. But should commission members be prohibited from
representing people before any commission or from doing work that needs
to be approved by any commission? This would seem to be absurd. Why
should a sewer board member who is a lawyer not be able to represent a
client before the zoning board? 
 
Similarly, just because a kind of work requires a town permit should
not prevent a commission member from doing the work once it's been allowed, as long as the
commission member is not using his or her position to get the work, and
is not preferred in any way by the sewer department in getting approval
of the work. That is the true conflict issue. 
 
Appearance of Impropriety 
It is, however, reasonable to argue that there is an appearance of
impropriety when a sewer commissioner does any work that has to be
approved by the sewer department, assuming that the sewer commission
oversees the sewer department and can affect the pay or promotion of
sewer department employees. But the language in §17(a) is not a
good way of communicating this, and it clearly failed to do so in this
instance. 
 
Definitions 
Another problem here is the fact that no one considers a sewer
commissioner a "municipal employee." A commission member who does read
the rule, but does not refer to the definitions, would assume that the
rule does not apply to him. Yes, sewer commissioners in this town get
an $1,800 stipend, but that hardly makes them employees. And in any
event, the definition includes even volunteer commission members. 
 
This is one reason why it is important to put no surprises in the
definitions section. The language in the rule itself
should indicate clearly whom it applies to. 
 
Overinclusive Language and the Length of Ethics Codes 
It's also important that language not be so vague as to make it hard
for officials and employees to determine whether or not it applies to
their situation. If you want one rule to apply to a number of
situations, it would be better to break it up into subsections that
each apply to the different situations that are contemplated. 
 
This is why I often disagree with those who want to keep ethics codes
short. Using clear, simple language is far more important than keeping
a code short. And remember that officials and employees only need
to read the ethics provisions, not the administrative provisions. The
effective part of an ethics code is far shorter than the entire code. 
 
No one could read §17(a) and know that work that requires a permit,
even if not from the one doing the work, is "a direct and substantial
interest" of the town. If no one could read language this way, an
ethics commission should not read it this way. 
 
For a precedent to this particular situation, see this 2006
Massachusetts <a href="http://www.mass.gov/?pageID=ethterminal&L=5&L0=Home&L1=Opinions+and+Rul…; target="”_blank”">disposition
agreement</a>, where a local public works board member did paving work
that required a permit from the public works department. 
 
Update: December 2, 2009 
According to <a href="http://www.telegram.com/article/20091202/NEWS/912020338/1101" target="”_blank”">an article in today's Worcester Telegram</a>, the sewer commission member entered into an agreement with the EC to pay a $5,000 civil penalty. EC executive director Karen Nober said, "Municipal employees must understand that the conflict of interest law requires their undivided loyalty to the municipality. That loyalty is compromised when municipal employees represent private business interests in matters where the municipality also has interests.” 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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